Time to revisit Obergefell decision

Justice Markandey Katju-

Justice Markandey Katju

Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own.

In Obergefell vs Hodges, 2015, the US Supreme Court directed all states in USA to legalize gay marriages. This decision amounted to encroaching into the province and domain of the legislature, and thus violated the constitutional principle of separation of powers between the 3 organs of the state. It is well settled that the court cannot direct the making of a law, since lawmaking is the job of the legislature.

In Dobbs vs Jackson Women Health Organisation, 2022, the US Supreme Court reversed its decision in Roe vs Wade regarding the right to abortion. In the article below I have said that the Dobbs verdict is correct because judges cannot make law, and in Roe they made law.

For the same reason the Obergefell decision also needs to be reversed (as indeed Justice Clarence Thomas suggested in his Dobbs decision).

The Obergefell decision was given by a 5-4 split verdict. Justice Kennedy, who gave the majority judgment held that the right to gay marriage flowed from the Due Process and Equality clauses in the 14th Amendment to the US Constitution. But there is nothing in the Due Process clause to support this conclusion.

Section 1 of the 14th Amendment states :

“ —nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws “

What has this to do with gay marriages?

Also, the Equality clause cannot be construed to mean that a right created by the legislature of one state must also be extended to other states. In other words, if one state gives 100 dollars to all citizens of that state, other states are under no legal obligation to do the same for their citizens.

As observed by Chief Justice Roberts :

“ This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitaliza- tion altered).

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept “.

I entirely agree with the Hon’ble Chief Justice. Obergefell should be reveresed.


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